The essential elements to pleading a breach of contract under New York law are the making of an agreement, due performance by the plaintiff, breach by the defendant, and damage suffered by the plaintiff. See Stratton Group, Ltd. v. Sprayregen, 458 F. Supp. 1216, 1217 (S.D.N.Y. 1978). Under Fed. R. Civ. P. 8(a)(2), the elements of a claim for a breach of contract need not be separately pleaded. All that is necessary is a concise and plain statement of the claim showing that the pleader is entitled to relief. Nordic Bank, PLC v. Trend Group, Ltd., 619 F. Supp. 542, 561 (S.D.N.Y. 1985).

Despite Van Brunt's ostensible compliance with pleading requirements, Rauschenberg argues that dismissal is nevertheless proper. First, Rauschenberg argues that dismissal is proper in that implied contracts arising out of personal relationships are not recognized in New York. Second, Rauschenberg contends that the alleged express promises are not sufficiently certain or specific to be enforceable. Third, Rauschenberg argues that parts of the contract claim must be dismissed as lacking in consideration or being barred by the statute of limitations and the statute of frauds.

Rauschenberg next argues that the amended complaint fails to identify any agreement sufficiently definite to be enforceable. The argument is without merit. In his amended complaint, Van Brunt alleges that Rauschenberg agreed to (1) pay Van Brunt's living expenses; (2) reimburse business expenses incurred by Van Brunt on behalf of Rauschenberg; (3) annually supply Van Brunt with two drawings and two paintings destined for exhibition from each of the series of works that Rauschenberg and Van Brunt worked on; (4) provide Van Brunt with one of each edition and two of each multiple or poster that Rauschenberg and Van Brunt worked on together; (5) pay Van Brunt's income taxes; and (6) transfer to Van Brunt the property on Captiva Island known as the "Fish House." In consideration for these promises, Van Brunt alleges that he promised not only to devote his life, both personally and professionally, to Rauschenberg, but also to perform various duties, including coordinating exhibitions and providing administrative services. As such, the amended complaint sufficiently sets forth a cause of action for breach of contract and the motion to dismiss must fail. Accord Kelley v. Galina-Bouquet, Inc., 155 A.D.2d 96, 552 N.Y.S.2d 305, 306 (1st Dep't 1990) (finding wife's breach of contract claim against husband sufficient where complaint alleged substantial business dealings prior to and during marriage).

This is not to say that the contract claims are to be sustained in their entirety. Specifically, Rauschenberg notes that some of the claims are for past consideration
*fn2"
and others are barred by the statute of limitations and the statute of frauds. It is elementary that "past consideration is no consideration." Raymond Babtkis Assocs., Inc. v. Tarazi Realty Corp., 36 A.D.2d 694, 318 N.Y.S.2d 798 (1st Dep't 1971); 21 N.Y.Jur.2d, Contracts § 108 at 519 (1982). While past services may constitute valid consideration where there is a written agreement signed by the promisor, N.Y. Gen. Oblig. Law § 5-1105; Sarama v. John Mee, Inc., 102 Misc. 2d 132, 422 N.Y.S.2d 582 (1979), the existence of a written agreement is not pleaded. Accordingly, the claims based on past consideration must be dismissed.

Other claims are barred by the statute of limitations. In New York, breach of contract claims must be brought within six years from the time of the breach. N.Y. Civ. Prac. L. & R. § 213(a) (McKinney 1988); Barr v. McGraw-Hill, Inc., 710 F. Supp. 95, 98 (S.D.N.Y. 1989). As such, the promises Van Brunt alleges as dating from 1969, 1979, 1982, and 1983 must be dismissed as time-barred.
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It is noted that many of the contract allegations are too ambiguous to determine whether consideration was past or present. Other allegations fail to provide dates, making it difficult to ascertain whether or not they are barred by the applicable statute of limitations. While we are mindful that an order for a more definite statement should not serve as a substitute for discovery, we are also mindful that this is the second time the Plaintiff has appeared before the Court with vague allegations. Accordingly, pursuant to Fed. R. Civ. P. 12(e), we order the Plaintiff to file a new complaint containing concise paragraphs describing each promise, the date of the promise, the relevant consideration, and the specific damage resulting from the breach. In drafting the new complaint, Plaintiff is instructed to take cognizance of this Court's determinations. Claims which are for past consideration or are time-barred should not be re-alleged.

Plaintiff's new complaint should be filed within fifteen (15) days of the date of this opinion and order. Failure to comply with the terms of this opinion may result in the imposition of sanctions.

2. The Unjust Enrichment Claim

Rauschenberg next argues that Van Brunt fails to state a claim for unjust enrichment.

Rauschenberg next moves for dismissal of the conversion and replevin claims, arguing that they are preempted by the work-for-hire doctrine.
*fn6"

To state a claim for conversion under New York law, a plaintiff must allege that he has "an immediate superior right of possession to a specific identifiable thing and that a defendant with intent to interfere with such ownership or possession exercised dominion or actually interfered with the property to the exclusion of or in defiance of the plaintiff's rights." Kahn v. Crames, 92 A.D.2d 634, 459 N.Y.S.2d 941 (3d Dep't 1983). Similarly, to establish a cause of action in replevin, the owner of the property must demonstrate that he has an immediate and superior right to possession of the chattel including proof of ownership.

There is some case law suggesting that claims for conversion and replevin are preempted by operation of the work-for-hire provision of the federal copyright law. 17 U.S.C. § 301(a); The Gordy Company v. Mary Jane Girls, Inc., 1989 U.S. Dist. LEXIS 14581 (S.D.N.Y. 1989) (LEXIS, Genfed library, Dist. file) ("A copyright claim based on a common law conversion is preempted by the federal copyrights laws."). Cf. Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 231, 84 S. Ct. 784, 11 L. Ed. 2d 661, reh'g denied, 376 U.S. 973, 84 S. Ct. 1131, 12 L. Ed. 2d 87 (1964). Here, however, the applicability of the work-for-hire doctrine has yet to be determined. While a cursory review of the factors enunciated in Community for Creative Non-Violence v. Reid, 490 U.S. 730, 109 S. Ct. 2166, 104 L. Ed. 2d 811, (1989) suggests that the work performed by Van Brunt was work for hire, a dispositive determination at this time, prior to any relevant discovery, would be premature.

5. The Constructive Trust Claim

Finally, Rauschenberg asserts that the amended complaint fails to set forth the elements necessary to establish a claim for constructive trust and as such this claim should be dismissed.

The facts alleged in the complaint cannot support a constructive trust theory for two reasons. First, Van Brunt has not alleged a confidential relationship sufficient to satisfy the first requirement for a constructive trust. As case law makes clear, a close relationship between an employer and employee is not enough. Cf. Ingle v. Glamore Motor Sales, Inc., 140 A.D.2d 493, 528 N.Y.S.2d 602, 604 (2d Dep't 1988), aff'd, 73 N.Y.2d 183, 538 N.Y.S.2d 771, 535 N.E.2d 1311 (1989). See also Rochester Radiology Assocs., P.C. v. Aetna Life Ins. Co., 616 F. Supp. 985, 989 (W.D.N.Y. 1985) ("if the relationship is not of a confidential or fiduciary nature, so 'pregnant with opportunity for abuse and unfairness' as to require equity to intervene and scrutinize the transaction, a constructive trust cannot be imposed"). What seems to be required is some type of marital, quasi-marital, or family relationship. See, e.g., Bankers Sec. Life Ins. Soc. v. Shakerdge, 49 N.Y.2d 939, 428 N.Y.S.2d 623, 406 N.E.2d 440 (1980); Simonds v. Simonds, 45 N.Y.2d 233, 408 N.Y.S.2d 359, 380 N.E.2d 189 (1978). Because Van Brunt has not alleged a marital, quasi-marital, or family relationship, this claim under a constructive trust theory is defective on its face.
*fn7"

Additionally, this constructive trust theory fails since the Plaintiff has not alleged that he transferred any property to the Defendant in reliance of a promise. Without a transfer of property in reliance of a promise or agreement, there cannot be a constructive trust. For example, in Stephan v. Shulman, 130 A.D.2d 484, 515 N.Y.S.2d 67 (2d Dep't 1987), the court refused to impose a constructive trust between a quasi-married couple on the ground that the plaintiff had not alleged that she had transferred any property in reliance of a promise by the defendant, nor did she have a prior interest in the property. As such, the court concluded that the elements necessary for the imposition of a constructive trust had not been set forth. See also, Caballero, 759 F. Supp. at 147-48; Barnes v. Byrnes, 153 A.D.2d 831, 545 N.Y.S.2d 342 (2d Dep't 1989); Mance v. Mance, 128 A.D.2d 448, 513 N.Y.S.2d 141 (1st Dep't), appeal denied, 70 N.Y.wd 668, 518 N.Y.S.2d 961, 512 N.E.2d 544 (1987).

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